Race Against the Clock: Trump's Judicial Picks Hit Republican Roadblocks as the Senate Majority Winds Down

The calendar is the most powerful force in Washington right now. In less than two months, Democrats take control of the Senate, and with it the power to decide who sits on the federal bench. For conservatives who spent decades building a judiciary that respects the Constitution as written, every week until then counts.

The surprise is where some of the resistance is coming from.

President Trump has won confirmation for 57 judges this term: 10 to the federal appeals courts, 46 to district courts and one to the Court of International Trade, the Associated Press reported, citing the Senate Judiciary Committee. Twenty-four judicial nominations were pending in the Senate, the AP reported.

CBS News counted 28 current vacancies and 15 announced future ones, and reported that Trump has not yet named candidates for more than half of those 43 seats. Mike Davis, founder and president of the conservative Article III Project, wrote in a Fox News op-ed last week that 23 judges were pending, four for appeals courts and 19 for district courts.

Democrats are poised to hold at least 54 Senate seats next year, CBS News reported. The new majority takes over on January 3, Davis wrote.

The administration has been blunt. In a statement to Bloomberg Law, the White House said it expects all pending judges to be confirmed this year, adding that "Senate Republicans cannot leave any circuit court vacancies for the incoming Democrat majority".

Senate Majority Leader John Thune has said the same. "The priority is going to be getting the judges across the finish line," he said, according to CBS News. Judiciary Committee Chairman Chuck Grassley told the Wall Street Journal that Republicans cannot take their feet off the gas, the AP reported, and he says his committee has moved nominees faster than at any time since the Reagan years. The committee will hold more hearings next week, breaking from its usual every-other-week schedule, CBS News reported.

Sen. Rick Scott of Florida has urged colleagues to stay in Washington and work rather than go home, listing confirmation of roughly 25 judges in the pipeline among his priorities, along with voter ID legislation and government funding, which runs out December 11, Breitbart reported.

The sharpest obstacle came from Arkansas. The state's two Republican senators, John Boozman and Tom Cotton, did not sign off on Lee Rudofsky, a federal district judge Trump nominated to the 8th U.S. Circuit Court of Appeals, the AP reported. The senators preferred Arkansas Supreme Court Justice Cody Hiland, who had declined an offer of a district judgeship, according to the AP and Bloomberg Law. The two senators did not introduce Rudofsky at his September confirmation hearing, Bloomberg Law reported.

The White House withdrew Rudofsky's nomination on November 10 without explanation, the AP reported. Before that, Sens. John Cornyn of Texas and Thom Tillis of North Carolina had privately told Grassley they would vote no in committee, according to two people familiar with the matter cited by the AP.

Cornyn and Tillis are both Judiciary Committee members who are leaving the Senate, and they have used their committee votes to back colleagues who do not sit on the panel, the AP reported. Cornyn has objected to Elliot Gaiser, a Justice Department lawyer nominated for a Dallas-area district seat, saying Gaiser skipped Texas' bipartisan judicial evaluation panel; Cornyn has also pointed to Gaiser's work on 2020 election challenges, the AP reported.

Tillis, acting on behalf of Oklahoma Sen. Alan Armstrong, forced Grassley to postpone a committee vote on Zachary West, a former counsel to Sen. Ted Cruz nominated to a district court in Oklahoma, according to the AP. Armstrong said his objection was purely about qualifications. Tillis framed his stand as a dispute over process rather than the merits of any nominee. "Don't treat us like a manufacturing facility," he told the AP. Tillis also made clear he was unbothered about angering party leaders, the AP reported.

Davis has also criticized Cornyn and Tillis for their role in the Arkansas fight, Bloomberg Law reported. Utah Sen. Mike Lee has urged his colleagues to keep confirming nominees while they still can, according to Bloomberg Law.

To many on the right, this looks like an own goal. Davis argued in his op-ed that Thune should confirm every pending nominee before January 3, warning that Democrats will block appeals court picks once they take over. He described Rudofsky as a committed constitutionalist who had earned swift approval. Davis also accused the Arkansas senators of costing Republicans a key appellate seat, AlterNet reported.

That warning has history behind it. The Senate's blue-slip custom still lets home-state senators block district court nominees, though not appeals court nominees, the AP reported. AlterNet, citing Politico, reported that the blue slip could let Democrats block appointments in Texas, Kansas and South Carolina for years to come.

Democrats are already preparing to slow things down. Sen. Dick Durbin of Illinois, the Judiciary Committee's top Democrat, said Republicans are breaking standards to rush loyalists onto the bench, and he is challenging the nominations of Gaiser and James Sullivan, a Texas district court nominee, CBS News reported. Senate Democratic Leader Chuck Schumer has said Democrats will not fill the bench with poor nominees, the AP reported. Sen. Sheldon Whitehouse of Rhode Island, expected to lead the Judiciary Committee next year, has promised a reset on nominations, CBS reported. Ed Whelan, a conservative legal commentator, told CBS News he expects that almost none of Trump's judicial nominees will be confirmed once Democrats are in charge. Grassley, for his part, has noted that committee chairs set their own schedules, CBS reported, a reminder that the gavel itself is the prize.

Federal judges serve for life. A district judge confirmed this December may still be deciding cases about religious liberty, parental rights, the Second Amendment and the limits of federal power in the 2050s. Appeals court judges shape the law for entire regions of the country. Presidents come and go; judges stay.

That is why these home-state disputes matter so much. Senators have every right to insist on well-qualified nominees and to defend the traditions of their states, and the advice-and-consent power is written into the Constitution for a reason. But with the clock running out, a disagreement over one name can mean the seat goes to the other party's choice for a generation. Conservatives who value both senatorial courtesy and a constitutionalist judiciary will hope the two can be reconciled quickly.

The remaining appeals court nominees are the biggest test. One nominee for the 10th Circuit and one for the 5th Circuit were ready for floor votes, and Todd Butler, another 5th Circuit pick, had a confirmation hearing set for November 10, Bloomberg Law reported. More committee hearings, including on Gaiser and Sullivan, are expected next week. Newly appointed Oklahoma Sen. Kevin Hern is set to be sworn in on November 30, the AP reported.

Then comes December 11, the government funding deadline, and the usual scramble before the holidays. After that, the window closes, and the next two years of judicial confirmations will run through a Democratic Senate.